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May it please the court, Steve Sady for Daniel Jenkins.

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I hope to reserve five minutes for rebuttal.

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The Oregon Appellate Court determined that Mr. Jenkins, defense lawyer in his first trial, violated the attorney-client privilege by disclosing protected information that resulted in the prosecutor and judge having that information, the prosecutor increasing the charges,

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his conviction at his second trial.

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The sentence that he is serving now is a direct result from that violation of attorney-client privilege.

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This court should reverse the denial of habeas corpus relief because the conviction results from a Sixth Amendment violation, and this court's determination in Michael's is governing law that establishes three principles that require relief.

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The defense lawyer's violation of the attorney-client privilege under state law at the time of the disclosure constitutes ineffective assistance of counsel under the Sixth Amendment.

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Second, subsequent changes in the standard for what constitutes an attorney-client privilege are irrelevant to whether the defendant received effective assistance of counsel at the time of the disclosure.

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And third, the disclosure violated the Sixth Amendment rights and constitutes clearly established federal law for the purposes of federal habeas corpus.

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So, Mr. Shady, I just wanted to jump in.

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You started off by saying that in the original Jenkins opinion,

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that there was a finding that there was a violation of attorney-client privilege.

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Yes.

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So as I read the case, and you can point to me if I'm wrong about that, the court said that the statement was inadmissible under Oregon law.

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Correct?

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That's the reasoning of the opinion.

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The reasoning of the opinion says

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goes to the statute.

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The statute defines the scope of the privilege, and the scope of the privilege was violated, which rendered the information inadmissible.

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Those are intermeshed in completely one concept.

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Well, and that's, I guess, what I'm asking, because it's one thing to disclose information.

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It's another thing for the information to be admissible.

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In this situation, I think it's indistinguishable, because the court was ruling on what Oregon law is on the attorney-client privilege and what the exceptions are.

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And by finding that no exception under the crime fraud privilege applied, they made a determination that the attorney-client privilege had been violated.

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So that, I believe, is the law of the case.

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That's entitled to full faith and credit.

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It is the determination that drives this court under Michaels to make the determination that there was a violation of the Sixth Amendment that was not remedied.

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Throughout the litigation, Mr. Jenkins was saying, just return me to the same position I was before the impermissible revealing of information.

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which is quoting exactly out of Nix versus Whiteside.

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Right.

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But you would agree in Jenkins, the state court opinion, that that was not a Sixth Amendment case.

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I think that it is a Sixth Amendment case.

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Does it say the Sixth Amendment anywhere in that opinion?

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No.

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OK.

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So how is it a Sixth Amendment case if it doesn't say the Sixth Amendment?

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Because under Michael's, the Sixth Amendment is determined by state law

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on the scope of the privilege.

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So it made a determination that is absolutely essential to knowing what the scope of the Sixth Amendment protections are.

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Once you establish that there's a Sixth Amendment violation, that violation of attorney-client privilege, that establishes the deficient performance for the purposes of the Sixth Amendment.

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Those are the same thing, the same concept.

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So can I ask you about that?

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Because in Michael's, on page 936, Michael says there was no plausible exception to the attorney-client privilege or to the duty of confidentiality under which the attorneys could have reasonably been acting.

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Here we have this Oregon disciplinary rule, 4-101C, that seems to at least plausibly be an exception to confidentiality.

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So I don't know how we're actually under Michael's.

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I think we are exactly under Michael's, and that's because the disciplinary rule was raised in that first appeal.

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The government, the appellant cited it, the government cited it.

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And I think that what's most important is that the Oregon Supreme Court has stated that the scope of the attorney-client privilege is a statutory question.

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In a case called State v. Keenan, the court stated that the

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question of privilege is a statutory one.

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So it's not a matter of what the statements in the disciplinary rule would be.

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And the disciplinary rule has to be read in conjunction with the statute.

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It's like the concept in administrative law.

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You have a statute and then you can have

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other regulations, but it has to be consistent with the underlying statute.

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So anything about the disciplinary rule has to be read consistently with the furthering of the crime.

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I mean, that might be the best reading, but if all you need is a plausible exception to not be under Michael's, it seems like it's at least a plausible reading of the Oregon disciplinary rule that it allowed the disclosure here.

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I don't think that there's no plausible reading.

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If there was a plausible reading, wouldn't we have heard from the state in that initial appeal making that argument?

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The reason they couldn't make that argument, if you look back at the 1998 version of the Oregon State Bar, the Oregon ethical lawyer, they put those two things exactly together.

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And they quote from the statute, not anywhere else.

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It's not a plausible reading.

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when we have on this exact case, in a case with this... Well, I mean, so the rule says a lawyer may reveal the intention of the lawyer's client to commit a crime and the information necessary to prevent the crime.

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Doesn't that sound like it applies here?

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No, it doesn't for a number of reasons, but most prominently because it has to be read in terms of the furthering of crime that the statute is.

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You can't have two separate attorney-client privileges.

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You have one that's created by the legislature that's the statute.

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And the ethical rule has to be read in conjunction with it.

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Even if you did glom that on that, then you have to look at what, in this case, the law of the case is.

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Has that been waived?

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Has it been asserted?

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In Jenkins, they say.

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If there is an exception, there's a burden on the person arguing for the exception.

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We heard no argument about that.

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If there had been an argument, all these types of things could be presented.

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But it's been waived, forfeited, and it's now the law of the case.

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And even under the 1790 Full Faith and Credit Act, the federal court should be deferring to the state when it says, this is what the attorney-client privilege

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is what the Sixth Amendment requires to be conformed to by the defense lawyer.

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And here, the defense lawyer fell far short.

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The defense lawyer never even spoke to the client before talking to the prosecutor about something that was reported by a third party employer.

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But we're here dealing with ineffective assistance of counsel.

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Yes, we are.

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Right?

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Which is different.

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Correct?

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No.

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Why not?

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Because ineffective assistance of counsel is determined by whether the person provided the zealous representation that's required, the loyalty to the client when they go off to talk to the prosecutor about statements.

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And so the scope of the privilege determines whether there's deficient performance under the Sixth Amendment.

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So they are one and the same in this context.

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Well, if in fact there was a violation, as the court said, the Oregon court originally said on appeal that there was an evidentiary violation and remanded for that purpose.

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But after that, there were a series of different decisions by the courts.

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The second time, there was a second trial.

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And then the court, the Oregon court upheld that.

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And then there were a series of habeas challenges.

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And when the habeas challenges were brought, the question would be whether or not the lawyer in making this disclosure

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did everything reasonably possible that she believed was reasonably possible.

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Isn't that the issue?

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No.

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I believe that what you're getting to is in the second trial at every stage, he raised the Sixth Amendment claim.

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And I think that we've established through Farmer versus Baldwin that even to the petition for review, he raised the Sixth Amendment claim.

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So that claim has been

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perfectly preserved.

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And as far as any deference is concerned, it goes back to the trial court.

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And what did the trial court do in that case?

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She said, I don't know what to do here, because it looks like I usually consider privilege at the time of the disclosure, not at the time, not at a later time.

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But I'm going to follow the statute.

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So we don't have any Sixth Amendment ruling.

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Then in the post-conviction,

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He raises issues, the same issues, but the state comes back and says, oh, no way.

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You already had a post-conviction on your first case, so your procedurally can't be heard.

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So again, no reasoned opinion.

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So that's why you have de novo review here.

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You have a determination by the state court of what the scope of the privilege was.

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And once you have that determination, it's a Sixth Amendment violation, and he's entitled to relief.

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And with the court's permission, I'll reserve the remaining time.

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Very well.

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Thank you, Mr. Stadey.

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Thank you.

[00:11:09] Speaker 03:
Good morning.

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May I please the court, Pinesh Shah, for the state superintendent, asking this court to affirm the district court's judgment.

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With the court's permission, I'll follow Mr. Sadie's lead and focus on the merits.

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But before I do, I just want to just make clear that we continue to dispute whether this claim is procedurally defaulted.

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And I think that the Farmer v. Baldwin case cited in Petitioner's Reply brief is distinguishable.

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And I may return to that.

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But I think right now, a better use of our time might be to just focus on the merits.

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So I'll do that.

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So on that point, I want to focus on the difference between rules of evidence and rules of ethics.

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And that distinction matters because no Oregon court has ever held that Counsel Dickinson violated any ethics rules when she disclosed Petitioner's plan to commit a crime.

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All we have from the Court of Appeals is a ruling as an evidentiary matter.

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In fact, so far as the record shows, and so far as I've been able to discern, she's never been disciplined for this, notwithstanding the fact that Mr. Jenkins filed a complaint against her that was investigated by the bar.

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You can look at ER 187-90, which contains evidence that there was an investigation that was commenced.

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So far as I can tell, so far as the record shows, no discipline resulted from that.

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And that lack of ethics violation is what separates this case from Michael's and makes it more like McClure.

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Because in Michael's, this court was able to conclude that there was an ethics violation because the California rules of ethics didn't contain the kind of exception that was contained in McClure, which involved the exact same rule in Oregon as we have in this case.

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And so there is no ethics violation here.

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In fact, there's no basis to conclude that there was an ethics violation, because a rule clearly applies.

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And that is the correct analysis, not a focus on the evidence rules, because that's what EDPA and the Supreme Court's opinions under Strickland and Nix require, because when they talk about prevailing professional norms in Strickland, and when Nix talks about authority speaking with one voice, they never discuss evidence rules.

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all they're talking about are canons of ethics and professional responsibility.

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And so those have to be – because those are the rules that govern attorney conduct, not evidence rules.

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You know, evidence rules govern admissibility.

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You know, I think one good analogy is when you think of somebody other than a lawyer, a doctor, for example, they can disclose whatever they want, and that's governed by their own professional responsibility code outside of courtrooms.

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The rules of evidence apply only in the courtroom.

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And so the only real analysis here is whether there's a violation of the ethics rule.

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Because there isn't, that's really the simplest analysis here.

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I'll note that even if there were a violation of the ethics rules, that would not be enough under Strickland and EDPA, because they have held that that alone is not enough.

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But we don't even need to get there, because here we have a clear ethics rule that says that this was OK.

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And I don't have anything further to add unless the court has questions.

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I'll leave it at that.

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Thank you.

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We have to defer.

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I invite the court to read 504 that was in effect at the time.

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It's not a ruled evidence.

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It's a rule of what the scope of the attorney-client privileges.

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It's the only rule.

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There's no

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magic way of having a outside of the legislature where the legislature has said this is the scope where some agency can create something different.

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And even if we were looking, if we were looking at the type of analysis in McClure where they were looking at a past crime but whether there was an imminent need and that's where the court split about whether there had been a sufficient consultation

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How do you explain the bar telling her the advice that it was OK to disclose this, or at least it was possibly OK, and then not disciplinary, not disciplining?

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I think that the assistant person who was in touch with the pro se prisoner was unaware of their own manual that treats those two things the same and made none of the types of analysis that anybody would in litigation.

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reason why, as noted in the direct appeal, Mr. Jenkins said, they're not relying on this.

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They haven't talked about that.

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Why are they waiving that?

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They're waiving it because it doesn't apply.

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And they've cited it as a C-site in their response.

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But it's not like the judge didn't know about it.

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They said, no, the attorney-client privilege doesn't apply.

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And an assistant counsel

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dealing with a pro se person who sounds angry and unreasonable.

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I thought the lawyer consulted, though, and asked for advice.

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Is that not true?

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Excuse me?

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Didn't the lawyer who made the disclosure ask for advice?

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Yes.

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She said that she made a call, and it sounded like there was not a definitive response when they made the call.

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talked to their supervisor, but they never talked to the client.

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We deal with folks as public defenders.

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I've been doing this for a little while.

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And we deal with folks who have anger, who are damaged, who say all kinds of things.

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And one of the reasons that the rule is the way it was at this time, it's good for people to know that people are having

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thoughts like that because what we're counselors we persuade people not to look what the supreme court said in white side they said oh the guy said he's going to perjure himself on the stand oh let's run to the court and say uh no the supreme court says no the first duty that everybody recognizes is for the lawyer to go and say don't do that you can't do that that's illegal you have you should

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You can sit there and not, I'll advocate for you, but I will not let you testify.

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Same thing here.

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Where was the conversation?

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He never even heard him say a threatening thing.

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Well, and then, but I, my record, my understanding of the record is she consulted with the state bar.

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She told the state bar what was she learned was precisely what your client said to the psychologist and the state bar said, well, what you need to do is determine whether or not this in fact, or his threat is eminent.

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So,

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Why isn't that what she did, that in conjunction with a variety of other things that she did, including contacting the judge, reasonable under Strickland?

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It's prohibited under Strickland because she never did what you have to do to determine imminence.

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The way you determine imminence is you talk to the person and find out what they were thinking, what they were doing, and you advise against it.

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There was no consultation and there was no imminence.

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He was in jail.

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He was, she stated, I did not expect him to be getting out anytime soon.

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And so there is neither eminence nor consultation that you'd have to have, even if you were looking at

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a rule that is inconsistent with the statutory scope of the privilege.

[00:18:36] Speaker 00:
So you're saying that as a matter of law, there's always an obligation to contact the client, even when the client says, I'm going to kill somebody?

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If you have not heard that, and what I take from my side is that your first obligation is to try to dissuade the person.

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I'm going to commit a new crime.

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Don't do that.

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This is why you shouldn't do it.

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And you persuade the person away from things.

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You don't just hear from a third party and then go running to the prosecutor.

[00:19:12] Speaker 00:
So the other thing I want to ask you, though, in the old rule is the language for protecting

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confidential communications, and I believe this is, as far as I'm concerned, is everywhere, is that those communications for protection are only those for the purpose of facilitating rendition of professional services.

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So how could these communications that he made

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B, for the purpose of facilitating the rendition of professional services.

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And as I understand, Ms.

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Dickinson's argued that.

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Why weren't they?

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How are those statements of threat protected for the purpose of facilitating professional services?

[00:20:04] Speaker 01:
The professional services were the psychologist.

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A psychologist is evaluating them.

[00:20:13] Speaker 01:
the Oregon Appellate Court in Jenkins directly addressed your concern.

[00:20:17] Speaker 01:
And they said that the court, first of all, the state implicitly conceded, and that they agreed that that concession was proper, because when you're having a psychological evaluation, the person's state of mind is going to be at issue, and that's going to be obtained, which also distinguishes this case from some of the cases that the state relies on, because in this case, it was

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determined to be within the privilege.

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So the only way that there is not a Sixth Amendment violation is if the state has carried its burden of showing that it falls outside of the privilege.

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It's either in or out.

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And here it is.

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We have a state determination that is entitled to full faith and credit that it was in attorney-client privilege and not subject to the crime-fraud exception.

[00:21:08] Speaker 04:
All right, thank you very much, Mr. Say.

[00:21:10] Speaker 04:
And thank you to your office for picking up this case.

[00:21:11] Speaker 04:
It's much appreciated.

[00:21:12] Speaker 04:
Thank you.

[00:21:13] Speaker 04:
This matter is argued and submitted.

[00:21:15] Speaker 04:
Thank you both for your briefing as well as the final argument today.